Citation Nr: 1031249
Decision Date: 08/19/10 Archive Date: 08/24/10
DOCKET NO. 05-30 952 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an increased evaluation for degenerative disc
disease of the lumbar spine, currently rated as 40 percent
disabling.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The Veteran had active service from November 1969 to November
1973.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an April 2004 rating determination of the
Department of Veterans Affairs (VA) Regional Office (RO) located
in St. Petersburg, Florida. Thereafter, the Jackson,
Mississippi, RO assumed jurisdiction.
The Veteran appeared at a Travel Board hearing before the
undersigned Veterans Law Judge in August 2007. A transcript of
the hearing is of record.
This matter was previously before the Board in March 2008 and
July 2009, at which time it was remanded for further development.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran if
further action is required on his part.
REMAND
The Board notes that in July 2009, the Board remanded this matter
to obtain additional treatment records. In conjunction with the
Board remand, the AMC, acting on behalf of the RO, obtained
treatment records from the Biloxi, MS, Bay Pines, FL, Santa Rosa,
CA, and Henderson, NV VAMCs.
As it relates to the Santa Rosa VAMC, the Board notes that
treatment records through September 14, 2009, were obtained and
associated with the claims folder. With regard to the Henderson
VAMC, treatment records through October 19, 2009, were obtained.
In a statement in support of claim dated October 25, 2009, the
Veteran requested that treatment records from January 2009 to the
current date be obtained from the Santa Rosa VAMC and that
treatment records from the Henderson VAMC to the current date be
obtained. The Veteran was specific in his request that up to
date treatment records be obtained. VA is deemed to have
constructive knowledge of documents which are generated by VA
agents or employees. Bell v. Derwinski, 2 Vet. App. 611,612-13
(1992). If those documents predate a Board decision on appeal,
are within VA's control, and could reasonably be expected to be
part of the record, then "such documents are, in contemplation of
law, before the Secretary and the Board and should be included in
the record." Id. at 613. If such material could be
determinative of the claim, a remand for readjudication is in
order. Dunn v. West, 11 Vet. App. 462, 466 (1998).
The Board further observes that treatment records that were
obtained in conjunction with the Veteran's claim and Board remand
show that his condition may have worsened since the time of the
last examination. The Board notes that at the time of the
January 2009 VA examination, the Veteran reported having missed
one day of work every few weeks due to his back condition. In an
October 2009 outpatient treatment record it was noted that the
Veteran had had eight weeks off within the last year due to
ongoing back pain. Moreover, in an October 2009 statement in
support of his claim, the Veteran indicated that he had been
placed on unpaid absence under the Family Medical Leave Act and
had applied for medical retirement and Social Security
disability. VA is obliged to afford a veteran a contemporaneous
examination where there is evidence of an increase in the
severity of the disability. VAOPGCPREC 11-95 (1995). Based upon
the Veteran's statements and the objective medical evidence
showing a possible worsening of the Veteran's symptomatology, an
additional VA examination is warranted.
The Board further notes that as the Veteran has indicated that he
has applied for Social Security Disability benefits due to his
back condition, an attempt should be made to obtain any available
records. VA has an obligation to obtain copies of all Social
Security decisions and the records underlying those decisions.
Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v.
Derwinski, 2 Vet. App. 363, 372 (1992). These records have not
been associated with the claims folder.
Accordingly, the case is REMANDED for the following action:
1. Obtain copies of all records of the
Veteran's treatment from the Henderson VAMC
and the Santa Rosa VAMC from August 2009 to
the present.
2. Contact the Social Security
Administration (SSA) and obtain copies of
all decisions pertinent to the Veteran's
claim for SSA benefits, as well as the
medical records relied on concerning that
claim.
3. The Veteran should be afforded a VA
spine examination, with an appropriate
examiner, to determine the symptoms and
severity of his service-connected
degenerative disc disease of the lumbar
spine. The Veteran's claims file should be
made available to the examiner and the
examiner is requested to review the entire
claims file in conjunction with the
examination and note such review.
All tests and studies deemed necessary by
the examiner should be performed. The
examiner should perform range of motion
studies and comment on the presence and
extent of any painful motion, functional
loss due to pain, excess fatigability,
weakness, and additional disability during
flare-ups. The examiner should similarly
state whether the Veteran's spine is in any
way ankylosed and, if so, in what position.
Finally, the examiner should describe the
frequency and length of any incapacitating
episodes (e.g., requiring bedrest) in the
past year.
A complete rationale should be given for
all opinions and conclusions expressed in a
typewritten report.
4. The Veteran should be advised in
writing that it is his responsibility to
report for the VA examination, to cooperate
with the development of his claim, and that
the consequences for failure to report for
a VA examination without good cause include
denial of the claim. 38 C.F.R. §§ 3.158,
3.655 (2009). In the event that the
Veteran does not report for any ordered
examination, documentation must be obtained
that shows that notice scheduling the
examination was sent to his last known
address prior to the date of the
examination. It should also be indicated
whether any notice that was sent was
returned as undeliverable.
5. To help avoid future remand, the RO
must ensure the required actions have been
accomplished (to the extent possible) in
compliance with this REMAND. If any action
is not undertaken, or is taken in a
deficient manner, corrective action should
be undertaken before the claims file is
returned to the Board. See Stegall v.
West, 11 Vet. App. 268 (1998).
6. After undertaking any other development
deemed appropriate, the RO should
readjudicate the remaining issue on appeal.
If the benefit sought is not granted, the
Veteran and his representative should be
furnished with a supplemental statement of
the case containing all pertinent laws and
regulations and afforded an opportunity to
respond before the record is returned to
the Board for future review.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
JOHN L. PRICHARD
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2009).